The Prosecutor’s New Playbook: “Officer-Created Jeopardy”

The controlling rule has not changed. Under Graham v. Connor, 490 U.S. 386 (1989), an officer’s use of force is judged by objective reasonableness: what a reasonable officer on the scene would have perceived, in the moment, without the 20/20 vision of hindsight, with allowance for the fact that officers must make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving. That is the practical significance of Graham for every critical incident you will ever face. The prosecution must defeat what you reasonably perceived when you acted. Not what a jury wishes you had done. Not what a professor thinks best practices required. What you faced, when you faced it.

Prosecutors know they often cannot beat that standard on the split second itself. So, a growing number have stopped fighting on that ground. Instead, they move the jury’s focus to the minutes before the force was used and argue the officer is to blame for being in danger at all. The label they give it is “officer-created jeopardy:” the claim that your own tactical decisions created the
danger, so the force that followed was your fault.

This is no longer a fringe academic theory. It has a scholar, a definition, and a courtroom track record. At the University of South Carolina, Professor Seth Stoughton, a former short term Tallahassee police officer turned law professor and author of Evaluating Police Uses of Force has made officer-created jeopardy the centerpiece of his scholarship. He helped draft California’s 2019 use-of-force law around the principle that reviewers must examine the officer’s actions leading up to force, not just the subject’s. Prosecutors are now bringing him into criminal courtrooms to explain the theory to juries.

We watched it happen in Grand Rapids. In the second-degree murder trial of former GRPD Officer Christopher Schurr in the April 2022 shooting of Patrick Lyoya, the prosecution called Stoughton as its use-of-force expert. He defined officer-created jeopardy for the jury, then applied it directly to Schurr: he testified it was reasonable for Schurr to stop Lyoya and try to grab him, but that the foot chase was unreasonable; that Schurr should have warned before using deadly force; that no reasonable officer would have pulled the trigger; that Schurr faced no imminent threat justifying deadly force. The defense objected that this testimony would only confuse the jury thus inviting twelve citizens to grade Schurr’s tactics instead of judging the reasonableness of his decision in the moment. The jury deadlocked. The judge declared a mistrial. The prosecutor chose not to continue with the prosecution.

This week we watched it again in Mississippi. Former Capitol Police Officers Steven Frederick and Michael Rhinewalt stood trial for manslaughter in the September 2022 shooting of 25-year- old Jaylen Lewis in Jackson. Assistant Attorney General Luke Williamson did not merely argue the shooting was unjustified. He argued the officers “unnecessarily created a chaotic and dangerous situation” by approaching Lewis at night, in unmarked cars, in plainclothes, over a red-light violation. Lewis’s passenger testified she never knew they were police until the gunfire started.

Do not look at the seconds when the car moved toward the officers, the prosecution told the jury. Look at the decisions that put the officers in front of it.

Same theory, different state and different courtroom. The jury acquitted Frederick outright and deadlocked on Rhinewalt after less than five hours of deliberation. The next day, Attorney General Lynn Fitch announced her office would not retry Rhinewalt: “In the case of a tie, the benefit of the doubt goes to our law enforcement officers.”

Prosecutors believe the Supreme Court has given them an opening. In Barnes v. Felix, 605 U.S. 73 (2025), decided May 15, 2025, a unanimous Court rejected the Fifth Circuit’s “moment of threat” doctrine and held that Fourth Amendment reasonableness demands the totality of the circumstances, including the facts and events leading up to the use of force. Prosecutors read that as permission to put the entire encounter on trial.

But here is what Barnes did not do, and it is the point your defense attorney must drive home to the jury: the Court expressly left open the harder question of whether and how an officer’s own pre-force conduct that “created the danger” counts against a claim of self defense. Totality of the circumstances is not a license for hindsight. And the Court has rejected this theory’s close cousin before: in County of Los Angeles v. Mendez, 581 U.S. 420 (2017), it threw out the “provocation rule.” Considering context is not the same as criminalizing a tactical judgment.

Michigan law is on the officer’s side of this line. Under Michigan’s Self-Defense Act, deadly force is justified when a person honestly and reasonably believes it is necessary to prevent imminent death or great bodily harm judged on the circumstances as they appeared to the person who acted, when he acted. Not as they appear to a professor with a book, months later, in a quiet courtroom. A debatable tactical decision is not a crime. A policy violation is not a crime. Criminal liability requires the elements of the charged offense, proven beyond a reasonable doubt, not a failing grade on tactics.

What does this mean for you?

First, the fight now starts before the force. Every tactical decision to chase, to close distance, to go hands-on will be second-guessed by someone who was not there. Second-guessed by 12 jurors that have never worked a day doing your job. Only give a statement about your tactics with your attorney present after a critical incident. Prosecutors will mine your words for admissions about what you “could have done differently.” Second, the first 72 hours define your defense. Get counsel involved before you write or say anything. Third, insist at any trial on the Graham instruction and fight any instruction that invites the jury to convict you for your tactics
rather than judge your reasonableness in the moment.

The system will not protect you. Prosecutors are building their cases based on officer created jeopardy, scholars are refining it, and it is being road-tested in courtrooms right now. Preparation is the only protection: know the theory, recognize it when it appears, and have a defense team that knows how to dismantle it before it ever reaches a jury. That work starts before the critical incident not after.

 

The Fraternal Order of Police State Lodge of Michigan is leading the fight against this theory. In 2025 the membership unanimously voted on a resolution condemning the use by prosecutors. This resolution was then adopted and passed by the National Fraternal Order of Police at its national conference in Miami in August of 2026. This alone demonstrates why your membership in the Fraternal Order of Police is worth the money and time.